Boyd v. . Walters

*379 Stacy, O. J. Tbe record contains no statement of case on appeal, bence we are limited to a consideration of tbe judgment, tbe appeal. itself being regarded as an exception thereto. Casualty Co. v. Green, 300 N. C., 535, 157 S. E., 797. Agreeably to tbe requirements of C. S., 836, tbe tenor of tbe defendant’s forthcoming bond is to tbe effect that, if tbe plaintiff be adjudged tbe owner and entitled to tbe recovery of tbe possession of tbe property described in tbe plaintiff’s affidavit, tbe defendant and bis surety bind themselves for tbe delivery thereof to tbe plaintiff, with damages for its deterioration and detention, if delivery can be bad, together with tbe costs of tbe action, and if such delivery cannot for any cause be bad, tbe defendant and bis surety bind themselves for tbe payment to tbe plaintiff of such sum as may be recovered against tbe defendant for tbe value of tbe property at tbe time of its wrongful taking and detention, with interest thereon as damages for such taking and detention, together with tbe costs of tbe action. Hall v. Tillman, 110 N. C., 230, 14 S. E., 745. Tbe judgment, therefore, should have followed tbe statute and tbe terms of tbe bond. Council v. Averett, 90 N. C., 168. As pointed out in Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466, tbe form of tbe judgment in claim and delivery, when tbe plaintiff 'recovers and summary judgment is taken against tbe surety, should be “for tbe possession of tbe property, or for tbe recovery of tbe possession, or for tbe value thereof in case a delivery cannot be bad, and damages for tbe detention” (C. S., 610), together with tbe costs of tbe action, with tbe further provision that tbe plaintiff recover of tbe surety on tbe defendant’s replevy bond tbe full amount of such bond, to be discharged, first, upon tbe return of tbe property and tbe payment of tbe damages and costs recovered by tbe plaintiff, or, second, if a return of tbe property cannot be bad, upon tbe payment to tbe plaintiff of such sum as may be recovered against tbe defendant for tbe value of the property at tbe time of its wrongful taking and detention, with interest thereon as damages for such taking and detention, together with tbe costs of tbe action, tbe total. recovery against tbe surety in no event, however, to exceed tbe penalty of tbe bond. Harrell v. Tripp, 197 N. C., 426, 149 S. E., 548; Polson v. Strickland, 193 N. C., 299, 136 S. E., 873. See, also, McCormick v. Crotts, 198 N. C., 664, 153 S. E., 152. Tbe cause, therefore, will be remanded for judgment in accordance herewith. Error and remanded.